In the wake of the shooting in Aurora I am sitting here and wondering, who in the heck needs a 100-round magazine for his or her hunting rifle? I know that asking this question is going to provoke a reaction, and more likely than not, a negative reaction, but I honestly think that as attorneys who have sworn an oath to uphold the Constitution of the United States and the Minnesota State Constitution, we must again ask the question: Where do we draw the line? When do we recognize that what may be rational has become unreasonable? This is just a question and it is not meant to get any 2nd Amendment supporters up in arms (so to speak), still I think it’s a question that becomes timely every now and again.

Defining Unreasonable

I am willing to bet that there are many families in Aurora, Colorado that are saying 100-round magazines are unreasonable. As a matter of fact, I would bet that if a survey was taken throughout our state or the entire country, the consensus would be that making 100-round magazines available to the general public is unreasonable.

For those of you who do not know me, I am a hunter, I am proud of that, and I really enjoy deer hunting. I am also a staunch supporter of the “right to bear arms” and I thank our forefathers for assuring us that right. Having made that statement, I need to again ask the question, who needs a 100-round magazine? I say this only hypothetically because, as any hunter knows, if you need 100 rounds to down your deer (or any other game you are hunting) then it is time to take up a different sport.

This returns me to my initial question, where do we draw the line? When does an interpretation of a position or stance unreasonably go beyond what that position or stance was initially meant to define? The Minnesota State Bar Association has no position on the right to bear arms and I am not writing this article seeking such a position. I am writing this article in an effort to open a discussion on the question, where do we draw the line? Because of the recent tragedy in Colorado, this is an easy question to start the discussion with.

Limits of Law

Because the question arose for me in the context of the Aurora shootings, I asked a very close friend of mine (an NRA member) to share his thoughts on this topic. During our discussion, it became clear that “gun control” is a subject on which people have many different thoughts. My friend pointed out that regulation itself is not going to stop stupid people from doing stupid things. I can agree with that. As my friend further pointed out, there is no reason for a law-abiding citizen like him or me to have a 100-round magazine for our hunting rifles; nor do we need Teflon-coated bullets. The deer we hunt do not need to be shot 100 times nor are they wearing bullet-proof vests. But these observations don’t really address the basic question. They say nothing about whether regulation of the product is going to stop individuals from misusing it.

As attorneys, as protectors of the Constitution and protectors of everyone’s rights, we must ask, where do we draw the line? I cannot speak for anyone other than myself and I certainly am not speaking for the bar association when I make this statement, but I argue that greater circumspection is needed in interpreting our gun laws to ensure those decisions are reasonable.

I cannot believe that our Founders thought that every single word in the Constitution was to be read in a vacuum. Times have changed, our language has changed, our country has changed, and our society has changed. The words of our Constitution have not changed; they have remained the same since they were written. Does that mean this document is the same document today as it was in 1787 or 1791? I would argue yes and no, and that is why I am asking everyone to ask themselves: Where do we draw the line? When did we as attorneys stop asking this question?

Tough Questions

I can read the Constitution and nowhere in that document does it state that we cannot yell “fire” in a crowded theater, and yet we all know the 1st Amendment does not protect such speech. With that in mind, I can read the 2nd Amendment which states, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Nowhere in this statement do the Framers state that any person who wants a 100-round magazine has a right to such a product.

I think that it is time for us attorneys to start looking at the tough questions, questions that are tough because of the arguments that have been made before, and we need to start finding reasonable and rational answers to these tough questions. This is our obligation to our profession and to society. Just because a question is tough does not mean we should avoid it, and this is my question to you, where do we draw the line?

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Robert F. Enger

Bob was president of the Minnesota State Bar Association from 2012-2013. A son of northern Minnesota, he serves as Supervising Attorney for Legal Services of Northwest Minnesota, based in Bemidji, and is the first legal services attorney to serve as MSBA President.